Legal Memorandum: Duty Based on Special Relationship in VT

Issue: Under the law of Vermont, is a special relationship held to exist between a student and a school for purposes of a cause of action for the negligent hiring and retention of a school employee where the student was abused?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State), Education Law
Keywords: Special relationship; Duty of reasonable care; Relationship of school to student
Jurisdiction: Vermont
Cited Cases: 207 A.2d 146
Cited Statutes: Restatement (Second) §§ 314A and 320; Restatement (Third) of Agency § 7.05; Restatement (Third) of Torts § 40(b)(5)
Date: 12/01/2009

While Restatement (Second) §§ 314A and 320*FN1 do not specify the school/student relationship, the official comments to § 320 make clear that those relationships are included:

The circumstances under which the custody of another is taken and maintained may be such as to deprive him of his normal ability to defend himself, or to deprive him of the protection of someone who, if present, would be under a duty to protect him, or though under no such duty would be likely to do so….  So too, a child while in school is deprived of the protection of his parents or guardian.  Therefore, the actor who takes custody of a … child is properly required to give him the protection which the custody or the manner in which it is taken has deprived him.


Restatement (Second) of Torts, § 320, cmt. b.  Another comment also indicates that the relationship of school to student is a special relationship, entitling the student to protection by the school:

Duty to anticipate danger.  One who has taken custody of another may not only be required to exercise reasonable care for the other’s protection when he knows or has reason to know that the other is in immediate need of it, but also to make careful preparations to enable him to give effective protection when the need arises, and to exercise reasonable vigilance to ascertain the need of giving it.…  So too, a schoolmaster who knows […]


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